IN RE A.S.

No. D071156.

In re A.S., a Person Coming Under the Juvenile Court Law. SAN DIEGO COUNTY HEALTH AND HUMAN SERVICES AGENCY, Plaintiff and Respondent, v. Brenda R., Defendant and Appellant.

Court of Appeals of California, Fourth District, Division One.


Attorney(s) appearing for the Case

Christopher R. Booth , under appointment by the Court of Appeal, for Defendant and Appellant.

Thomas E. Montgomery , County Counsel, John E. Phillips , Chief Deputy County Counsel, and Lisa Maldonado , Deputy County Counsel, for Plaintiff and Respondent.


NOT TO BE PUBLISHED IN OFFICIAL REPORTS

California Rules of Court, rule 8.1115(a), prohibits courts and parties from citing or relying on opinions not certified for publication or ordered published, except as specified by rule 8.1115(b). This opinion has not been certified for publication or ordered published for purposes of rule 8.1115.

NARES, J.

The juvenile court terminated appellant Brenda R.'s reunification services with her daughter A.S. because Brenda had not successfully reunified within the 18-month period allowed by Welfare & Institutions Code1 section 361.5, subdivision (a)(3). The record suggests the failure to reunify was related to the fact that during the first 13 months of A.S.'s out of home placement, Brenda was incarcerated in a federal correctional facility and was thereafter in a halfway house and not likely to be able to secure suitable housing for herself and A.S. in the time permitted by the statute.

Following the termination of services, the juvenile court found A.S. was adoptable and terminated Brenda's parental rights. Among other circumstances supporting the juvenile court's adoptability determination, the record shows that from the time A.S. was found to be a dependent at the age of 20 months, A.S. had been successfully placed in the home of a maternal great aunt who wished to adopt her. On appeal from the order terminating her parental rights, Brenda argues the juvenile court should have applied the exception to the otherwise mandatory termination of parental rights that arises under section 366.26, subdivision (c)(1)(B)(i) when the juvenile court finds a parental bond of such character that preserving the bond outweighs the benefits of a permanent placement. As we explain more fully, although Brenda had visits with A.S. in which she displayed affection for the child and which the child seemed to enjoy, there was no evidence in the record of the sort of strong and enduring parental bond between them, which, as a matter of law, would justify depriving A.S. of the benefits of an adoptive placement. Accordingly, we affirm the juvenile court's order terminating Brenda's parental rights.

FACTUAL AND PROCEDURAL BACKGROUND

A. 2012-2014

A.S. was born in September 2012. Brenda was arrested on April 24, 2014 on criminal enterprise charges and was incarcerated for the next 16 months.

Immediately following Brenda's incarceration, 19-month-old A.S. was cared for by a series of Brenda's friends. A.S. came to the attention of the San Diego County Health and Human Services Agency (the agency) on June 30, 2014, when it was reported that Brenda was incarcerated and A.S.'s father's whereabouts were unknown. A.S. was detained in the home of a maternal great aunt, Aida L.

B. 2015

While Brenda was incarcerated locally, she had regular visits with A.S., although A.S. often times reacted negatively after the visits. When Brenda was incarcerated at a federal facility in Dublin, California, she visited with A.S. by telephone.

In August 2015, Brenda was released to a halfway house and began having weekly visits with A.S. During the visits, Brenda acted appropriately and in a loving manner; however, Aida reported that after the visits A.S. would have nightmares and tantrums that went on for hours; after one visit, A.S. defecated in her pants.

While at the halfway house, Brenda began working two jobs and that sometimes interfered with her ability to attend therapy sessions and visit A.S.

In January 2016, Brenda had an unsupervised visit with A.S. at a pizza restaurant; however, Aida reported that two of Brenda's friends joined her and that the friends' behavior both inside the restaurant and outside was inappropriate. As a result, unsupervised visits were discontinued.

An 18-month permanency review hearing was conducted on February 10, 2014 and February 18, 2014, and the juvenile court terminated reunification services. At that point, Brenda had not secured housing for herself and A.S.

Between February 2016 and August 2016, when a contested section 366.26 hearing was commenced, Brenda continued to have regular weekly visits with A.S. and the social worker reported that the visits went well, that Brenda acted appropriately and that A.S. seemed to enjoy her time with Brenda. However, Aida reported that, following the visits, A.S. continued to act out and have nightmares. During some visits, the social worker reported that A.S. was hesitant to visit Brenda and, on one visit, refused to hug Brenda at the end of the visit. Moreover, during this period, A.S. told her therapist that she had a family with Aida and did not want a different family.

In the reports it submitted to the juvenile court with respect to the section 366.26 hearing, the agency acknowledged that, for the most part, Brenda had made progress in her own rehabilitation. On the other hand, in at least one conversation with social workers, Brenda appeared unwilling to entirely sever her ties with criminal street gang members, although her gang association was related to her criminal conviction and incarceration.2

Significantly, Aida was willing and anxious to adopt A.S., and there were other families willing to adopt a child with A.S.'s characteristics.

The juvenile court found that A.S. was both individually and generally adoptable and that no exception to the requirement that parental rights be terminated applied. The juvenile court acknowledged that A.S. had a positive relationship with Brenda but found that the value of the relationship did not outweigh A.S.'s need for permanency and stability. Accordingly, the juvenile court terminated the parental rights of both Brenda and A.S.'s father. Brenda filed a timely notice of appeal.

DISCUSSION

As we indicated at the outset, on appeal Brenda argues the juvenile court erred in failing to apply the exception to the termination of parental rights set forth in section 366.26, subdivision (c)(1)(B)(i).

Following an order terminating reunification services, at a section 366.26 hearing the court may order one of three alternatives: adoption, guardianship or long-term foster care. (In re Taya C. (1991) 2 Cal.App.4th 1, 7.) If the dependent child is adoptable, there is a strong preference for adoption over the alternative permanency plans. (San Diego County Dept. of Social Services v. Superior Court (1996) 13 Cal.4th 882, 888.)

Once the court determines the child is likely to be adopted, the burden shifts to the parent to show that termination of parental rights would be detrimental to the child under one of the exceptions listed in section 366.26, subdivision (c)(1). (In re Lorenzo C. (1997) 54 Cal.App.4th 1330, 1343-1345; but see § 366.26, subd. (c)(1)(A).) Section 366.26, subdivision (c)(1)(B)(i), provides an exception to termination of parental rights when "[t]he parents have maintained regular visitation and contact with the child and the child would benefit from continuing the relationship."

In In re Autumn H. (1994) 27 Cal.App.4th 567 (Autumn H.), we interpreted the "'benefit from continuing the [parent/child] relationship'" to mean "the relationship promotes the well-being of the child to such a degree as to outweigh the well-being the child would gain in a permanent home with new, adoptive parents." (Id. at p. 575.) We further explained that "the court balances the strength and quality of the natural parent/child relationship in a tenuous placement against the security and the sense of belonging a new family would confer. If severing the natural parent/child relationship would deprive the child of a substantial, positive emotional attachment such that the child would be greatly harmed, the preference for adoption is overcome and the natural parent's rights are not terminated." (Ibid.)

In describing the parent-child relationships that might overcome the presumption in favor of adoption, we stated: "Interaction between natural parent and child will always confer some incidental benefit to the child. The significant attachment from child to parent results from the adult's attention to the child's needs for physical care, nourishment, comfort, affection and stimulation. (See Goldstein et al., Beyond the Best Interests of the Child (1973) p. 17.) The relationship arises from day-to-day interaction, companionship and shared experiences. (Id. at p. 19.) The exception applies only where the court finds regular visits and contact have continued or developed a significant, positive, emotional attachment from child to parent." (Autumn H., supra, 27 Cal.App.4th at p. 575.) However, "the continuing beneficial relationship exception" does not require that the child have a "primary attachment" to the parent. (In re S.B. (2008) 164 Cal.App.4th 289, 299 (S.B.).) We have not narrowly or specifically defined "the type of relationship necessary to establish the exception. The exception may apply if the child has a `substantial, positive emotional attachment' to the parent." (Ibid.)

As is the case with respect to the juvenile court's other rulings, when the juvenile court finds no exception to the required termination of rights we determine whether there is substantial evidence to support the juvenile court's ruling by reviewing the evidence most favorably to the agency and indulging in all legitimate and reasonable inferences to uphold the court's ruling. (See In re Misako R. (1991) 2 Cal.App.4th 538, 545.) If the court's ruling is supported by substantial evidence, the reviewing court must affirm the court's rejection of the exceptions to termination of parental rights under section 366.26, subdivision (c). (Autumn H., supra, 27 Cal.App.4th at p. 576.)

As we have noted, here the juvenile court found Brenda's relationship with A.S. was positive but not so significant that it outweighed the presumptive benefits adoption would provide for A.S. This finding is amply supported by the record. From the time A.S. was 19 months old until Brenda was released to a halfway house when A.S. was almost three years old, Brenda's only contact with A.S. was either by way of visitation in local jail or by telephone; thereafter, Brenda only had supervised visits with A.S. Significantly, A.S. also expressed to her psychologist her feeling that her family was with Aida, not Brenda.

Although Brenda relies on our holding in S.B., we have repeatedly noted that S.B. is very much limited to its particular facts. (See In re C.F. (2011) 193 Cal.App.4th 549, 558; In re Jason J. (2009) 175 Cal.App.4th 922, 937.) In S.B., the appellant, Michael, was the father and primary caretaker of a three-year-old girl at the time she was placed in the care of her maternal grandparents because the father and mother had been arrested on drug-related charges. The father complied with every aspect of his case plan and visited his daughter three times a week. His daughter "became upset when the visits ended and wanted to leave with Michael. [The social worker] noted Michael `demonstrates empathy and the ability to put himself in his daughter's place to recognize her needs.'" (S.B., supra, 164 Cal.App.4th at p. 294.) A bonding study was conducted, and the psychologist who conducted it found that Michael and his daughter had a fairly strong bond and that there was a potential for harm if the child lost that relationship. (Id. at p. 296.) We found the only reasonable conclusion on that record was that the child would be "greatly harmed by the loss of her significant, positive relationship with Michael." (Id. at p. 301, italics added.)

The circumstances on this record are readily distinguishable from the ones we considered in S.B. At no time during the almost two-year period following A.S.'s placement with Aida did Brenda's visits occur more than once a week, and, during a number of months, because of Brenda's incarceration, she had no in-person visits with S.B.; moreover, there is no bonding study in this record that suggests the risk of great harm we found in S.B. The case is, for similar reasons, distinguishable from the holding in In re Jerome D. (2000) 84 Cal.App.4th 1200, 1207, which involved a nine-year-old boy who had lived with his mother for almost the first seven years of his life and expressed his desire to live with her again; it is also distinguishable from In re Brandon C. (1999) 71 Cal.App.4th 1530, 1537-1538, in which we found no abuse of discretion in the juvenile court's determination that the exception applied where the mother had regular visitation with her twin sons over a three-year period, they appeared to enjoy her visits and had a good relationship with her.

In sum, we find no abuse of discretion in the juvenile court's determination that Brenda's relationship with A.S. was outweighed by the presumptive benefit of an adoptive home.

The order is affirmed.

NARES, J., concur.

HALLER, J., concur in the result.

FootNotes


1. All further statutory references are to the Welfare and Institutions Code.
2. The record contains other references to Brenda's apparent continuing relationship with gang members, including 1) a caution the social worker received from Brenda's former parole officer to the effect that, in light of the agency's recommendation that Brenda's parental rights be terminated, the social worked should be concerned about her safety; and 2) threatening texts Aida reported receiving from Brenda alluding to harm Aida might suffer from other people. While these references and Brenda's apparent failure to end her gang association tend to validate the juvenile court's earlier decision to terminate reunification services, they are not directly probative with respect to Brenda's contention on appeal that she has a relationship with A.S. that supports application of the exception set forth in section 366.26, subdivision (c)(1)(B)(i).

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